Revisiting the spectacular failure that was the Bill Gates deposition
arstechnica.com
arstechnica.com
If you've ever been deposed (and I have), then you know that Gates' approach was close to optimal when dealing with lawyers.
Bill's biggest mistake was having a terrible attitude and bad posture when answering questions. He made it too personal. Otherwise, the strict answers were mostly ideal and are often used as tutorials by attorneys to show those two things:
1) How not to have the posture/tone/etc in your voice when answering questions, but...
2) ...that this is an adversarial discussion and you should seek extreme clarity every single time.
It is an adversarial process, so you must not rely on the usual expectation that colleagues will take the charitable interpretation of your words, but Gates being unable to even possibly understand what his own emails mean, is evasive to the point of raising suspicion.
As for suspicion, from the article:
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At one point, Thomas Penfield Jackson, the judge hearing the case, chuckled, too. When Microsoft lawyers argued during a closed-door session that the deposition was turning into a side show and government lawyers should be barred from showing any more segments during the trial, the judge denied the motion, saying: "If anything, I think your problem is with your witness, not with the way in which his testimony is being presented." Jackson continued:
"I think it's evident to every spectator that, for whatever reasons, in many respects Mr. Gates has not been particularly responsive to his deposition interrogation. Everybody at your table has reflected skepticism as the testimony is presented."
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I'm characterizing the "whatever reasons" as suspicions. I suspect the judges did come to a conclusion on those reasons when it came time to deliver their opinion, and those reasons were damaging.
Edit, to add: maybe there are some novice or low-budget attorneys that don’t record them, but if you don’t record them it basically defeats the entire purpose.
2) ...that this is an adversarial discussion and you should seek extreme clarity every single time."
Thanks for that.
But if we're being realpolitik about it - shouldn't the 'objective' be to use easy to understand arguments that work well as sound-bytes and zingers, and simpleton analogies so that both the generally uninformed congress, press and population at large will be convinced either directly or by the perpetuation of the 'easy to understand arguments'?
And then to be likeable, which is the #1 thing that will give credibility?
As you say, it's a 'PR stunt - meaning the objective is not 'clarity' - it's more like winning a political TV debate.
It is routine to film in-person depositions.
Despite having been a mild OS/2 and Java partisan, I agree with the general consensus in this thread that Gates gets a bad rap for surely following his expensive lawyers’ advice on how to respond during a deposition. Boies’ strategy was to assume that as a competitive CEO and logically-minded programmer, Gates would indeed follow that advice to an extreme that could be made to look evasive and sinister. It’s not an accident that they spend so much time arguing over definitions of industry terms or what some Microsoft VP means by “ours”. Boies at any time could have accepted Gates’ understanding and moved on, but instead keeps calmly needling on subtle distinctions to rile him up.
EDIT: Yikes, now rewatching and I forgot that the first half hour of the deposition is Boies reading Gates carefully selected definitions out of the 1997 Microsoft Computer Dictionary and asking him if he accepts them as written. The idea that it was Gates who wanted to litigate terminology is nuts.
I think it's equating two very different anti-trust cases. Apple maintains control of what its users can install on their own devices--Microsoft never did that.
Just offering a free software should not be considered anti-trust. For one, browsers have been unfairly singled out. Why not ban MS Paint or notepad too? How about solitaire?
Now if Microsoft had restricted users from installing another browser in Windows, then I would agree it's anti-competitive. And this is much more akin to what Apple is doing.
The author wants to paint MS as hypocritical, but aside from being accused of anti-competitive practices, there are no similarities.
And second, I despise how one's deposition attitude plays so much into the media's narrative. It doesn't matter if Gates was kind or rude, agreeable or flippant, sloppy or well-dressed. The only that that matters are legal facts.
There was a reason it was browsers.
At the time there was rather a lot of software written against the Win32 API and nothing else. It was a moat. You needed that software, so you needed Windows. The web threatened to bridge the moat -- if people write web applications for Netscape, and Netscape runs on not only Windows but Mac and Solaris and everything else, no more moat.
So the strategy with Internet Explorer was to make it the dominant browser on Windows (which was 90% of desktops), and then add all kinds of IE-specific features and get web developers to use them, so their web pages only worked in IE. Then the user gets a dependency on a web page with an Active X control that runs on Wintel but not Mac/PowerPC or Solaris/SPARC, so they have to use Windows. And they have to use IE, which enables more web developers to target IE instead of open standards.
The problem wasn't that it was free. The problem was that it was free and non-standard and the non-standard bits were tied to Windows.
In fact, if Microsoft was indeed threatened by a programming language, or by a couple of nerdy academics (not even a company), that would greatly weaken the govt's case that they were a dominant monopoly.
Java is (or was) much more than a programming language. Rather it was viewed as something more like an operating system. Write once run everywhere, etc. By comparison I don't imagine Microsoft worried much about Pascal or Delphi.
Further, it seems... difficult to argue that a company that crushes nascent threats can't be a monopoly.
Lol -- you chose to focus on those 2 specific items, not me.
> squash potential competition
Virtually every single feature of Microsoft desktop OS'es could potentially be provided by an alternative provider. Many were and still are -- disk defragmentation, disk compression, anti-virus, firewall, web server, ftp client, image editing, database drivers, etc etc. People used to pay money for 3rd party utilities to expand beyond DOS's 640kb RAM limit... should Windows be prevented from handling memory management in order to not suppress competition? Seems like the most basic function of an OS. Early on, you couldn't print a spreadsheet in landscape mode without a 3rd-party utility... should the government disallow Windows from enabling landscape printing? Does Putty have an anti-competitive claim now that ssh is included in recent versions of Windows 10? How about accessibility features... should disabled individuals be denied use of standard Windows releases because the inclusion of a screen reader, magnification, etc would be anti-competitive with commercial alternatives?
> crushes nascent threats
Microsoft "crushed" neither Java nor web standards, both of which are doing fine and outlasted Internet Explorer, the focus of the government's case. Most of the problems Java does have, starting with poor stewardship, are entirely Sun/Oracle's own making.
Now Microsoft has open sourced .Net to run many languages on different platforms.
There's no need to make up some story about them doing it to force people to be Windows only.
The same stuff applies all over. Why did Apple use Objective C as the core way to interact with MacOS X? To the person that distrusts Apple they'll claim it is solely to lock in developers. Some developer makes an app in Objective C, it's too much work to port. I'm pretty sure though the charitable view is it was inherited from NextStep. The person that distrusts Apple will still claim it was a choice that Apple could have chose something more compatible but stuck with it because it had lock-in benefits.
The legal system is made of people, and people are exquisitely sensitive to social stuff. It's just not expedient to ignore that.
(Genuine) question: is the web open now?
Another thing I've learned is that modern CEOs are now expected to both be sucessfull businesspeople, and also humane enough to look good in a deposition and be skilled at deflecting questions.
Well apart from the OS installed on the device you are buying from an OEM.
Using dominance in one market to muscle into another is bog standard monopolistic practice, and nominally prohibited.
Conflating bundling with other anti-competitive strategies is unhelpful.
He makes it very clear in that documentary how much he regrets that he wore his disdain for the antitrust suit on his sleeve, as it played directly into the prosecutor's hands.
Billg is such a nerd problem solver (and I mean this in the most positive way) that he’s capable of investing and marshaling huge engineering focus on this outcast subject, just because he sees it as the crux of the actual problem.
He’s not thinking about Linux any more, he has moved on, there’s something more important to him, and that’s why he was willing to help make this particular documentary, right?
Toilets are one of the reason why we left a past of disease and death from sewage contamination.
Yet open defecation is a problem in so much of the world.
So this is exactly what I wanted to see how he deals with. A hard problem that is so vital. How does his brain tackle that. Especially how it's unlikely a computer problem
But they did totally miss the mark on talking about it, it was what I wanted exactly to see and was disappointed it was so disappointing.
Maybe we couldn't tackle it. But I have seen other specials where he had made a unique start on the problem.
My feeling was that the documentarian got to make the documentary on the condition of not asking the hard questions about Bills past.
Q: Okay. Let me ask you to look at Trial Exhibit 560. This is a message from you to Mr. Ballmer and Mr. Chase with a copy to Mr. Maritz and some other people also given copies dated August 15, 1997 at 4:07 p.m. on the subject of IBM and Netscape; correct?
A: Uh-huh
Q: BY MR. BOIES: And you type in here Importance: High."
A: No.
Q: No?
A: No, I didn't type that.
Q: Who typed in "High"?
A: A computer.
Q: A computer. Why did the computer type in "High"?
A: It's an attribute of the e-mail.
Q: And who set the attribute of the e-mail?
A: Usually the sender sends that attribute.
Q: Who is the sender here, Mr. Gates?
A: In this case it appears I'm the sender.
Being evasive like this is only a problem in depositions to the extent that it gives the media fuel to make the general public hate you. It's pretty much the optimal strategy in terms of the deposition itself.
Worth a watch imo.
I only watched the first little bit, but I could understand how this could play badly for PR, but i'm pretty sympathetic to gates here. Seems like they want to use layman simplified definitions of tech concepts, then catch him up on technical nitty gritty.
Of course we all know that dictionary definitions are meant to introduce someone unfamiliar to the topic, and not to enumerate every possible function. Using that logic I could say that 'cars don't have air-conditioning' since the definition of an automobile is "A self-propelled passenger vehicle that usually has four wheels and an internal-combustion engine".
This is a 29 year old company with a four-digit number of employees worth 17.3 Billion USD. Fortnite alone seems to have been a quite solid share of the App Store's gaming revenue. This is not a "David".
Sure, Apple, Google and Microsoft are worth one to two orders of magnitude more. But this is like seeing a small person fighting a bigger person from the perspective of an ant.
Goliath would have only been up to like double David's size anyways, so orders of magnitude sounds bigger than the David/Goliath difference.
Boies: What non-Microsoft browsers were you concerned about in January of 1996?
Gates: I don’t know what you mean “concerned.”
Boies: What is it about the word “concerned” that you don’t understand?
Gates: I’m not sure what you mean by it.
Boies: Is—
Gates: Is there a document where I use that term?
Boies: Is the term “concerned” a term that you’re familiar with in the English language?
Gates: Yes.
Boies: Does it have a meaning that you’re familiar with?
Gates: Yes.
If you are on the other side of this, it is your job to prevent this use of language and make sure that they don't manage to implicate yourself in any way, by nonchalant use of words. Being vigilant about your use of specific words in specific contents, and about querying what exactly they are trying to say by each question seems like a good default approach to the problem of not giving your opponent attorney more ammunition than they should fairly have. I imagine Mr. Gates was used to mistreatment by lawyers and simply speaks their language at that point.
Boies: Mr. Gates, is the term proprietary API a term that is commonly used in your business?
Gates: Let me give you …
Boies: all I’m trying to do is …
Gates: … the common meanings that those words could have and you can pick one of them and ask me a question about it
Boies: no
Gates: Do you want me to define proprietary API or not?
Boies: No, I don’t want you to define proprietary API. I didn’t ask you to define proprietary API. I asked you a simple question about whether the term proprietary API was commonly used in your business. Now I’m prepared to sit here as long as you want to to answer questions that I haven’t asked. But I have a certain number of questions that I am going to ask at the end of these other answers. Now this is a simple question. You can say yes, no, or it is used in lots of different ways. But then I can choose what to follow up on. Or you can simply make whatever statements you want and I’ll go back to my question afterwards. Now, is the term property API a term that is commonly used in your business?
Gates: I don’t know how common it is. It has many different meanings.
There's a reason we normally don't take questions as fully literal in day-to-day life.
Of course bill has not run a survey of the commonality of the use of the term of proprietary api in microsoft communications, so "I do now have that data".
No, we don't use that terminology much but other terms which might or might not have a similar meaning.
Because how often do you use the word proprietary API, and how often do you use internal API, Microsoft API, etc instead.
Boies tries to pull Gates repeatedly during the deposition into this kind of trap.
The general public hates lawyers. But it hates weasels even more. And CEOs acting like weasels even more than that. That's why congressional hearings are sometimes delightful to watch. It feeds our hatred of CEO "others."
There are plenty of CEOs who can talk to lawyers, even in a public forum, and do it well. Splitting hairs never looks good. It makes you look guilty.
Any company offering a product could be said to have executives who are concerned about competing products. It could range from malicious, anti-competitive behavior to simply wanting to provide a good experience.
That's why Gates wanted the lawyer to use less charged, ambiguous language. I personally believe he was engaging in unethical anti-competitive behavior, but you're going to have to nail him on it fair and square, rather than playing word tricks with him.
>The general public hates lawyers. But it hates weasels even more. And CEOs acting like weasels even more than that.
The lawyer was the one employing weasel words, there, by definition [1]. "Paying attention to" or "aware of" would be a much more fair and clear phrase.
>Splitting hairs never looks good. It makes you look guilty.
Yes, and the lawyer was probably aware of that and deliberately exploiting the ability to create such a perception. Either you fall into the trap and later are pointed to as sounding guilty, or you demand rigor and sound guilty in the moment. It's a double bind.
[1] Oxford definition of "weasel words": "words or statements that are intentionally ambiguous or misleading."
That's why I think he should have taken his own interpersonal and forced that through.
Which browser was he concerned about? Internet Explorer. Why? Because it's their product - in the browser space, that one is literally his main concern.
Evoking a "That's not what i meant" response comes across rather differently than the wordplay shown here. And having the attorney narrow the question to sth like "but out of IE's competitors, which one concerns you?" is the open door you're looking for.
("None really concern me in any sense of the word.", etc.)
Similarly, his statement "I did not have sexual relations with that woman" wasn't technically a lie in the context of the case. The investigation lawyers had textualized the definition of 'sexual relations' to be limited to PIV sexual intercorse, which he hadn't engaged in. So in a legal context his statement of not having 'sexaal relations' and his admission to having an 'improper physical relationship', were in no way contradictory.
However, when you take the statements out of that context and put them in the context of public opinion, it appears to be a bold faced lie. The more you play the game, the worse it looks outside of that context.
Lawyer tried constantly to get me to answer a question that would set them up. At the end they gave up and asked "did they tell you this item was for X and they were not allowed to charge for that". "No.". The deposition ended there.
Given it was not a huge deal litigation and the deposition took place in my lawyer's dining room it was actually an interesting experience and not really uncomfortable. It was akin to doing a programming interview. Actually a lot less was on the line.
their lawyer would (hopefully) not have that motivation
That's not 'logical' it's exactly the opposite of 'logical'.
If he answers "Netscape Navigator", then the Boies will continue on with the meaning that Gates was viewing them as a competitive threat.
If he answers "None", then Boies can go down the path of Microsoft not giving a damn about interoperability with 3rd-party software.
Because that's the browser his company makes, so, amongst browsers, that should have been his main concern. No need for wordplay, no looking at competition. Just the concern you'd expect from the CEO: a focus on their own product.
> Boies: What non-Microsoft browsers were you concerned about in January of 1996?
Is that the goal he's shooting for? To concede as many facts as possible to a hostile interrogator as quickly as possible?
The article may come off a little bit too harsh on Gates, but it is essentially right in that the US Gov strategy may have been to score a PR win on Gates and Microsoft. In that way, Gates came across as more on the defence than he perhaps needed to be in the situation. The deposition ended up being a low point from the public's perspective, though any damage has mostly been undone in the 2+ decades since.
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Hahaha, haha, ha. I'll just stop you right there, Dan Goodin.
Microsoft is several times the goliath they were at their Windows monopoly / anti-trust days peak.
If you had to pick the company that will be the most profitable tech company five years from now, who would you pick? Apple? Facebook? Google? Amazon?
It's Microsoft. They'll be the most profitable company on earth five years from now.
Operating income the last four quarters:
Microsoft: $53 billion
Apple is at $67 billion and barely growing. Their operating income has increased by a mere 11-12% in the last four years. Microsoft's operating income increased by about 140% over that time.
Google? They're going to soon have half the operating income of Microsoft. In terms of profit centers they've entirely failed to branch out from search advertising; that dog has largely seen its day, their growth potential in search advertising is rapidly heading toward zero (and Google is soon going to lose all of China for Android; it's a 100% guarantee they will move off of Android as soon as possible, nothing will stop that outcome now). Google as a corporation is a zombie, it walks around headless, directionless, with the least talented management team among major tech companies. Larry and Sergey are entirely responsible for that mess.
Amazon has 1/3 the operating income of Microsoft and will never catch up; and AWS will eventually be spun off anyway. Facebook's growth rate is going to continue to trend downward. Facebook applied the brakes to their thin operating model several years ago, and has gone on a massive cost expansion since. Under the former thin model, Facebook had a distant shot at catching Microsoft in profit, now they don't.
The anti-trust agreement Microsoft signed is part of the reason for that massive boom in prosperity. In pushing for anti-trust action, Silicon Valley did Microsoft a huge favor. It forced Microsoft to be aggressive about looking for other ways to make money that weren't locked to their Windows monopoly position. If that hadn't happened, the odds were drastically higher than Microsoft would have rotted away over time, stuck permanently on Windows and following its erosion of prominence. In the future, Microsoft will make as much money just off of Azure Linux-based services as they do Windows in total.
Also, conveniently, Microsoft is the only tech giant not being pursued for anti-trust right now. They have a wide open field to expand into. Karma is a bitch, Silicon Valley; you helped create something in Redmond that is far more powerful than Microsoft circa 1998, and while it grows unencumbered, your tech giants are all going to be tied down by the government, with every move and acquisition closely scrutinized.
This history doesn't sound right to me. Microsoft languished for a decade after that agreement, completely missing out on the mobile revolution in the process. Their resurgence seems to have mostly occurred in the past 5-6 years (since Nadella took over), so it seems kind of odd to credit an anti-trust agreement signed 15 years prior.
Google internet search, Apple king of Mobile, Facebook Social.
They are all tech but in a way their core businesses are totally unlike one another.
So long as 'Web Browsers happened' - anti-trust or not - then history would be just the same.
how so?
Or maybe I’ve read too much Douglas Adams...
What a inspiration.
"Innovation" when used by Gates in this context means "profits."
And I think Bill's dislike for Java was only because it was a threat to the Windows OS monopoly. The appeal of Java, as I recall, was that you could run the same application on multiple platforms.
Bullies do well in business.
The mid 90's was a long time ago. What was exciting then is not exciting now.
For example, everything in rust was available in other languages, i would still say it was innovative because it brought all that together into a polished package that made the right tradeoffs for mainstream usage.
To a large extent. Both Smalltalk and Erlang were mature at that point in time.
> everything in rust was available in other languages
I am not doubting you but are you aware of any other language with affine types? I am not.
https://www.youtube.com/watch?v=m_2m1qdqieE
Groklaw has some interesting Microsoft Files:
I always find it infinitely surprising that these billion-dollar companies with all their prestige are constantly making simple but serious mistakes in every field of activity they are present in.